The Impact of the Jackson v Attorney General on Parliamentary Supremacy in the English Law - Case Study Example

The Impact of the Jackson v Attorney General Case on Parliamentary Supremacy in the English Law The concept of Parliament Sovereignty had long been seen from the classical point of view of Albert Venn Dicey, who is deemed to be the greatest British and constitutional jurist, in which the Parliament is considered to be the receptacle of the most supreme authority in legislation. This supremacy entails the power to make laws, change laws and abolish laws as well as the implicit power to preclude any person or entity from making, changing or abolishing laws. This view, however, had been contested by learned jurists before but it was not until the case of Jackson v Attorney General when the classical concept of parliamentary sovereignty by Dicey was questioned explicitly by no less than the House of Lords. The Jackson case tackled a law created in 1911 which limits the powers of the House of Lords and allows the House of Commons to pass a bill into law without the consent of the former under certain circumstances. An amendatory law was passed in 1949 adding to the delimited power under which another law regulating fox hunting was passed in 2005. Although the earlier law was passed with Parliament as ordinarily constituted, the amendatory law was passes by the House of Commons alone. The assailed the validity of the 1949 amendatory law. The significance of the Jackson case is that it opens the possibility of a paradigm shift in the way the judiciary sees and treats the doctrine of parliamentary sovereignty from Dicey’s classical doctrine of absolute and pure supremacy to one that can be made subject to judicial review and scrutiny. Background to Parliament 1911 and Parliament 1949 Acts The 1911 Parliament Act, passed in 1909, had recently resurfaced in the middle of a contentious controversy, one that involved the issue of parliamentary supremacy. In 1908, the Old Age Pensions Act was enacted which provided weekly subsidies for people above the age of seventy. The English government, however, did not have enough funds to support the implementation of this legislation and thus, needed to raise some for that purpose. The following year, the Chancellor of the Exchequer came out with a new revenue generating plan called People’s Budget which included new tax measures. This was fiercely objected to by the Conservative-majority constituted House of Lords prompting the Chancellor to resort to the influence of public opinion. Thus, he toured all over the country, promoting the measure and at the same time denigrating the HL in the eyes of the public to make possible the passing of the new tax measures. 1 With the people convinced of the wickedness of the HL, the Liberals took advantage of the opportunity and reduced its powers by passing the 1911 Parliament Act. The Act cut back the powers of the HL with the following: precluding it from objecting to money bills; preventing it from delaying the passage of bills, and; reducing general elections times of the HL from seven to five. When the Conservatives in the HL attempted to block the measure, King George V, at the prodding of the Prime Minister, threatened to create more Liberal peers to outnumber the Conservatives in the HL. The Conservatives were forced to pass the 1911 Parliament Act. 2 In 1945, PA 1911 was amended by Parliament Act 1949, which added, among others, the shortening of the delaying period of the HL in approving bills from 3 to 2. In 2005, the case of Jackson and others v Her Majesty’s Attorney General 3 brought up to public attention said law when the appellants challenged the validity of Hunting Act 2004, which was enacted on the basis of the 1911 Parliament Act (as amended by Parliament Act 1949). The Case of Jackson and Others v Her Majesty’s Attorney General The case of Jackson v Attorney General originated from a petition filed by a group of three persons consisting of fox-hunting enthusiasts and persons involved in a business that promotes fox-hunting. The group contested the imposition of the law Hunting Act 2004 which prohibited the hunting of mammals using dogs albeit they acknowledged that it was enacted in accordance with Parliament Act 1949, the amendatory legislation to Parliament Act 1911. What the appellants found contentious is that the legislation itself (PA 1949) was invalidly enacted because it was passed without the consent of the HL. The core issue in this case, therefore, is the validity of Parliament Act 1949 and the effect of Parliament Act 1911. The appellants argued that the passage of PA 1949, which lacked the consent of the HL, was an exercise of a delegated authority granted to Queens and Commons under s. 2 of PA 1911 and is, therefore, not valid to effect an amendment of the original law or PA 1911. Section 2 of PA 1911 specifically enumerated the circumstances under which a law could be passed without the consent of the HL, among which, is restricting the delaying power of the HL to three years. A bill passed and approved by the House of Commons is deemed automatically passed if the HL has rejected a law in three successive sessions and the period between the second reading in the Commons in the first session and the passing of the bill in the Commons in the third is more than two years. PA 1949 amended PA 1911 by shortening the period of the delaying power of the HL from three to two years, an amendment effected by the Commons on its own without passing it to the HL for approval. The appellants objected to the validity of such amendment arguing that the move expanded the powers of the Commons without the approval of the HL and that this cannot be allowed because the original law prohibited modification of any of its terms without the consent of Parliament in its ordinary constitution; that is a Parliament that is constituted by both the House of Commons and the House of the Lords. 4 The HL dismissed the case when it was elevated to it in 2006. Lord Nicholls explained that the contention that the powers granted to the Commons under section 2 of PA 1911 can be characterised as delegated is “absurd and a confusing mis-characterisation” considering that the intent of the Parliament in enacting the law is to provide another method, parallel to the common method, of passing laws under the conditions enumerated in s. 2 with only the concurrence of the House of Commons and consider such passed laws as acts of Parliaments. Precedence also shows the validity of this view as laws like the War Crimes Act 2002, the European Parliamentary Elections Act and the Sexual Offences (Amendment) Act were all passed in accordance with PA 1911 and were subsequently held and treated valid as such by both Houses. 5 The argument, therefore, that the power granted under s 2 of the PA 1911 is delegated and the Commons is a mere delegate when it enacts laws under that same provision is not valid. In addition, Lord Steyn rejected the contention that there is an inbuilt limitation, by implication, on the power of modification of the very terms of PA 1911 because all the other limitations on the other conditions were explicit and therefore precludes limitations not made in the same manner. 6 The Impact of the Jackson Case to Parliamentary Sovereignty The doctrine of English parliamentary sovereignty had its origin in the 17th century when the English revolutionary struggles became victorious and the Parliament was given the sovereign power. Prior to that, the English Parliaments were created and abolished, at a whim, by the King. The Whigs and the Tories were constantly jostling each other out for the King’s attention and trust to control the Parliament indirectly. The Civil Wars of the 1640s had changed all that and the legislative supremacy of the Parliament was established. Subsequently, in 1688-89 during the glorious revolution, the supremacy of the statute over prerogative of the monarch began to be accepted. 7 The English concept of parliamentary supremacy, according to author Pavlos Eleftheriadis, is unlike any other in comparative constitutional law. This is so because, from a classic point of view espoused by Dicey, the English Parliament is granted unconditional powers unlike their equivalent counterpart, for example, in the United Congress whose powers are limited by the US Constitution. 8 The English concept of parliamentary sovereignty, according to Dicey, and which is the keystone of constitutional law is that the Parliament is the “supreme legislative authority in the state.” In addition, under the English Constitution, the Parliament “has the right to make or unmake any law whatever; and, further, the no person or body is recognised in England as having a right to override or set aside the legislation of Parliament.”9 Following Dicey’s classical concept of the English Parliament, the doctrine of parliamentary sovereignty has two dimensions: Parliament possesses the exclusive power to make, change and abolish laws, and; Parliament enjoys the immunity as against any other person or entity to change or abolish any of the laws it made. Although Dicey’s concept has been the accepted view for the longest time, in practice, however, all powers of Parliaments are based upon a set or list that limits or restricts them in keeping with its legal nature as a doctrine. This holds true with the Westminster Parliament and this view is bolstered by the decision of the House of Lords in the case of Jackson. 10 In supporting his decision to vote for the dismissal of the case, Lord Steyn of the House of Lords cited that the doctrine of parliamentary supremacy as espoused by Dicey does not any more hold true in the present time considering recent legal developments in the UK and Europe. The domestic laws, for example, had to integrate the principles of the European Convention on Human Rights because it is the obligation of UK as a signatory to the EC to abide by the fundamental principles of human rights as set out in the ECHR. The implication is that parliament sovereignty as applied to the English Parliament cannot be anymore applied in its pure and absolute form as viewed by Dicey. “The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen as out of place in the modern United Kingdom.” 11 Lord Steyn, however, clarified that the doctrine in its general meaning still holds true and is still a constitutional principle under English law. 12 The implication of the Jackson dicta is a changing paradigm in the concept of parliamentary sovereignty, at least from the perspectives of the judiciary. Even before the Jackson case, there were already hints that were some who do not fully subscribed to the absoluteness of the supremacy doctrine of the parliamentary supremacy, although these remarks were made outside of the courts and were not therefore officially legal. In 1990, for example, Lord Woolf was heard to comment that parliamentary supremacy is subject to another doctrine – the rule of law. Likewise, Sedley LJ also remarked, to the effect, that there seems to be a character of bi-polarity of sovereignty practiced by the Crown in Parliament and the Crown in its courts. It was in the Jackson case, however, that doubts about the doctrine were officially and judicially aired by the judiciary. Lord Steyn’s pronouncement was bolstered by Lady Hale who stressed the supremacy of the rule of law over that of parliamentary supremacy when she remarked “the courts will treat with particular suspicion (and might even reject) any attempt to subvert the rule of law by removing governmental action affecting the right of the individual from all judicial scrutiny.” 13 Lord Steyn and Lady Hale’s pronouncement as to the primacy of the rule of law even over the doctrine of parliamentary sovereignty was also shared by Lord Hope. In the same case, Lord Hope declared that although the English Constitution is dominated by parliamentary sovereignty, the latter does not anymore absolute and that the ultimate controlling factor upon which the English Constitution is underpinned is not parliamentary sovereignty but the rule of law. 14 Although the Lords were not unanimous in their pronouncements concerning the doctrine of parliamentary supremacy and that these pronouncements, specifically by Lord Steyn, Lord Hope and Lady Hale, were obiter dicta, the Jackson case, nevertheless, may open the way to the easing of the doctrine from the absolutist point of view as espoused by Dicey to a more relaxed perspective. Furthermore, these pronouncements which devalued the doctrine from its absolutist’s nature to one that may be held subject to the rule of law may also give some members of the judiciary the courage to assert themselves and question the authority of the supremacist nature of Parliamentary. Judges may in the future, for example, assert their right to subject laws enacted by Parliament to delve into their constitutionality and validity or the legality of the procedure in enacting them. Such acts will eventually crack the supremacy of the Parliament to make or unmake laws and restrict them to passing only laws that the courts will consider constitutional and lawful. References Cownie, Fiona & Bradnev, Anthony & Burton, Mandy. English Legal System in Context. Edition4. Oxford University Press, 2007. Eleftheriadis, Pavlos. Parliamentary Sovereignty and the Constitution. Canadian Journal of Law and Jurisprudence Vol. XXII, No.2 (July 2009). Faculty of Law, University of Cambridge. http://www.law.cam.ac.uk/faculty-resources/download/parliamentary-sovereignty-and-the-constitution/6399/pdf. House of Commons Library. The Parliament Acts. 23 March 2007. http://www.parliament.uk/commons/lib/research/briefings/snpc-00675.pdf Slapper, Gary & Kelly, David. The English Legal System: 2009-2010. Taylor & Francis, 2009. Turpin, Colin & Tomkins, Adam. British Government and the Constitution: Text and Materials Edition6, illustrated, revised. Cambridge University Press, 2007. Watts, Duncan. The 1911 Parliament Act. Tories, Conservatives and Unionists. http://www.spartacus.schoolnet.co.uk/L1911.htm Oliver, Dawn. The Changing Constitution. Edition6, Oxford University Press, 2007. Read More